In The Customs, Excise & Service Tax ... vs Commissioner Of Central Excise
- CitationAPPEAL No.ST/88063/13-Mum
Ratio decidendi
The rule this decision rests on
The Tribunal held that where the purchase orders and the parties' understanding show the arrangement to be a lump-sum contract for specified job work, with consideration tied to the number of pieces manufactured, rather than a supply of manpower, the activity does not fall within the category of Man Power Recruitment or Supply Services and no service tax liability under that head arises. The Tribunal held that the characterisation of a contract turns on the terms of the contract as evidenced by the purchase orders and as understood by both the service provider and the service recipient, and that where both parties understood the agreement as a lump-sum agreement for execution of work, it is not to be recharacterised as a supply of manpower merely because the provider deployed its employees at the recipient's premises. The Tribunal held that, on the same identical question, the matter is settled by the Tribunal's own earlier decisions in favour of the assessee, which the Revenue's appeal to the High Court against one such decision did not disturb, so that the impugned order to the contrary is set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.ST/88063/13-Mum (Arising out of Order-in-Appeal No. 126-127 dated 1/5/2013 passed by Commissioner of Central Excise, Pune III) For approval and signature: Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the :No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? Shivshakti Enterprises Appellant Vs. Commissioner of Central Excise , Respondent
Pune
Appearance:
Shri . R.K. Das DC (AR) for Respondent Shri. A.S. Sakpal, Advocate , for Appellant CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)
Date of Hearing : 05/08/2015 Date of Decision : 05/08/2015
ORDER NO
Per: M.V. Ravindran
This appeal is directed against order-in-appeal no. 126-127 dated 01/05/2013.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the non discharge of service tax liability under the category of Man Power Recruitment or Supply Services.
4. Relevant facts that falls consideration is appellant were deploying their employees to the factory premises of TATA Motors for manufacturing items based upon the purchase order placed by Tata Motors. It was the defense of the appellant before the lower authorities that they had done specific job work of the parts on required by Tata Motors deputing their persons.
5. We find that facts are not mach in dispute. Appellant had deployed his employees in the factory premises of Tata Motors for doing specific job work in accordance with the purchase order placed by Tata Motors. We perused the sample/specimen of purchase orders of Tata Motors Ltd. We find that Tata Motors Ltd. had agreed to pay consideration to the appellant based upon the number of pieces that would be manufactured by appellant in the factory premises of Tata Motors. We find that the issue is no more res Integra in as much, in case of Bavariya Enterprises Ltd. 2010 (19) STR-370. Tribunal based on laser of contract purchase orders indicated execution of lump sum work as understood by appellant and service recipients. The case is in hand, the appellant as well as the service recipients understood the agreement between them as the lump sum agreement and not for supply of manpower. We find that this bench in the case of Shriram Sao TVS Ltd. 2015 (39) STR 75, in a similar kind of service of lump sum contract for harvesting, loading and unloading of sugarcane hold as under.
4. We find that the issue is no more res integral inasmuch as this Bench has held in the case of Bhogavati Janseva Trust v. CCE, Kolhapur- 2014 (34) S.T.R. 410 (Tri-mum) on an identical issue has held in favor of the assessee. The same view was expressed by the Bench in Satara Sahakari Shetu Audyogik Oos Todani Vahtook Society v. cce, Kolhapur 2014 (36) S.T.R. 123 (Tri-Mum). It was brought to our notice that identical view was expressed by the ench in the case of Godavari Khore Cane Transport Company Pvt. Ltd. Central Excise Appeal No. 19 of 2014. The judgment of the Godavari khore Cane Transport Company Pvt. Ltd. was taken in appeal by the Revenue before the Honble High Court Of Bombay at Aurangabad. Their Lordships has upheld the order of the Tribunal reported as in Appeal Nos. ST/256/2008, S.T./68, 7/2009-Mum. [2012 (26) STR 310 (Tri-Mum)]. The ratio of the judgment of the Honble High Court at Para 6&7; we with utmost respect reproduce the same.
6. In view in the facts of circumstances of this case, and various judicial pronouncements, we find that the impugned order challenged by the appellant before us, is liable to be set aside and the appeal needs to be allowed to that extent. The impugned order is set aside, to the extent challenged before us and the appeal is allowed with consequential relief, if any.
(Dictated in Court) (C.J. Mathew) Member (Technical)
akp (M.V. Ravindran) Member (Judicial)
1 APPEAL No.ST/88063/13-Mum
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